Colorado River states need a 'federal threat' to make a water deal, this expert argues

The federal Bureau of Reclamation late last week released a draft Environmental Impact Statement outlining options for how to deal with the Colorado River going forward. Rules governing the river are set to expire, and the seven basin states haven’t been able to agree to a new plan for the over-allocated river.

Michael Cohen is a senior fellow with the Pacific Institute and has been working on the Colorado River for nearly 30 years. He argues the states have had enough time to come up with a solution on their own — and since they haven’t, the federal government needs to come in with a plan for the states and other stakeholders.

The Show spoke with him shortly before the Bureau of Reclamation released its EIS about why he thinks this is the best approach at this point.

Full conversation

MICHAEL COHEN: So there's been a number of challenges with the Colorado River negotiations. And over the years, Even since the mid-'90s, when the Secretary of the Interior, then Bruce Babbitt, came in to tell California to reduce its use, it was this credible federal threat, this idea that the federal government was going to take some action and impose some kind of rule or a change on the system that got the Colorado River Basin states to act.

And in recent years, what we've seen instead of a credible federal threat, is this idea that the federal government was here to facilitate, not dictate. And given how long it's taken the Colorado River basin states to come to an agreement, my argument is that it hasn't worked, and we need a change.

MARK BRODIE: So do you think then that the federal government just kind of has to tick all the states off in some way? Like, is that kind of the answer here?

Because it just seems kind of unlikely that the feds would come in and say, OK, here's the plan, and all seven states are going to say, "oh, yeah, why didn't we come up with that?"

COHEN: Part of my reasoning is that there needs to be a credible threat so that the seven basin states have the room to operate. Because we're in a situation now where the amount of water flowing down the Colorado River continues to decline pretty markedly as the climate gets hotter and drier, there's simply less water available for everyone. But it's very difficult for any negotiator, for any of the basin states to step up and basically say, "we're going to sacrifice ourselves for the good of the whole."

Whereas if they're responding to a federal threat, then they have some political cover. And then it gives each of these basin states the ability to step up and say that if we don't do something now, it's going to be worse otherwise.

BRODIE: So in your perfect world, then, would the federal plan that they threaten be an actual workable plan or like, worst case scenario, that would sort of spur the states into doing what they maybe would not have been able to do otherwise?

COHEN: Well, we're pretty far from a perfect world these days. But my hope is that what I outlined was a credible plan, or at least a plan that would have multiple benefits for the system, for the environment, and would lay out some realistic alternatives, but that really to be realistic, such a plan, it won't be implemented, but would provide enough, maybe even fear is the right word for the basin states that they would come together and come up with their own plan.

BRODIE: OK, so let's talk about the plan that you have outlined for the states. And it's very detailed and we obviously can't get into all of it. But it seems as though what you're calling for from the federal government's perspective is that both the Upper Basin and Lower Basin need to take some cuts here.

COHEN: Yes. Part of the challenge, I think, is that many of the basin states, and particularly in my home state of Colorado and other states in the Upper Basin are working off the wrong framing. Many people see this as a zero sum game even. There's been threats of litigation then. With litigation, of course, there's winners and losers.

But I think what's really happening with the river is that, as I've said, the river is shrinking. There's simply less for everyone. We're dealing with a shrinking pie, rather than a zero sum game. And with a shrinking pie, again, there's going to have to be cuts in the lower basin and the upper basin.

The lower Basin is already taking quite a bit of cuts. The Upper Basin quite correctly claims that if there's not water in the streams, they can't divert it and use it. So as the years get drier and drier, there's less water to divert. But in some ways, Upper Basin use has been creeping upwards a little bit in recent years.

So there's a lot of opportunity certainly in the Upper Basin to get back to where they were a few years ago and to demonstrate that there's a lot of pain in both basins. But everybody really needs to step up and take these cuts both in the Upper Basin and the Lower Basin.

BRODIE: Is it your sense of it that that is one of the, if not the biggest, sticking points here? Because when you listen to the rhetoric coming from negotiators, from some of the politicians involved, both between the Upper and Lower Basins.

And like, it seems as though one or both willingness to take some cuts and the severity of those cuts really seems to be sort of at the heart of all of this.

COHEN: Yeah, that's exactly right. And the rhetoric has become increasingly polarizing of late. And that leaves, I think, less space for any of the negotiators to come to a compromise. So again, this hope that there's this big federal hammer out there will give them that space to compromise, how optimistic.

BRODIE: Are you that if the feds came in with a plan, be it a plan like the one you're proposing or something else, that that would actually, in a sense kind of scare the states into coming up with their own compromise?

COHEN: I would say my optimism about events these days is pretty limited. But there's more and more pressure on the basin states. I think most people understand that litigation is a worse outcome because it creates even greater uncertainty. And then even when somebody wins in court, even at the Supreme Court, as we saw with Arizona back in the '60s, it then goes to Congress, and Congress can change it.

And what the Congress is going to do, particularly this Congress, is anybody's guess. So there's just so much uncertainty with leaving it to other actors to come up with a solution that I think it's far better for the seven basin states to come up with something, and I'm hopeful that that'll happen. But they haven't done it yet.

BRODIE: Right. Well, I guess I wonder then if there's maybe a danger that what the federal government proposes, as you've described it, sort of a hammer, might actually end up becoming the plan. If the states can't come up with something on their own.

COHEN: That's certainly a fallback option. And what exactly that looks like is uncertain.

BRODIE: If the states were to agree to a compromise kind of along the lines of what you are proposing, would that do it? Would that solve the problem, at least for now?

COHEN: Well, what we've seen repeatedly in the Colorado River is once the seven basin states come to an agreement, that's the agreement. So the hope is certainly that if they can come to an agreement, it'll provide some surety, some reliability for the system moving forward.

But how long that's going to last, I think is another point of contention because given how quickly the system's changing, there's some calls for kind of a short-term agreement, a three- to five-year agreement, so they can come up either with something longer term or just to see how the system is going to react.

BRODIE: It seems as though there are sort of dangers in different approaches, right. Like if you do what you just suggested, sort of a short-term solution, an air quote "solution." Like, the danger there, it seems to me, would be that it was like pulling teeth to get them to come up with this. So you have to do this again in three years, what's that going to look like?

But if they come up with a longer term plan, it seems as though without some kind of flexibility built into it, the danger there might be. There's a situation where you're sort of locked in to this plan that deals with a certain amount of water that maybe doesn't actually exist anymore.

COHEN: Yeah, that's exactly right. And that's what happened with the, the existing guidelines, the 2007 Shortage Guidelines, is that it wasn't enough. And we saw four years ago the system was really crashing and they had to revisit the rules to come up with these short-term tweaks.

So my expectation is any agreement they come up with will have some language in there saying if conditions get so bad, they'll have to revisit it.